Thomas v. Schroer et al

Filing 233

ORDER granting in part and denying in part 166 Motion for Summary Judgment. Signed by Judge Jon Phipps McCalla on 5/16/2016. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
WILLIAM H. THOMAS, JR.,
Plaintiff,
v.
JOHN SCHROER, Commissioner of
Tennessee Department of
Transportation, in his
official and individual
capacity; and JOHN REINBOLD;
PATTI BOWLAN; ROBERT SHELBY;
SHAWN BIBLE; and CONNIE
GILLIAM, in their individual
capacities,
Defendants.

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No. 2:13-cv-02987-JPM-cgc

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendants’ Motion for Summary
Judgment, filed October 2, 2015.

(ECF No. 166.)

2016, Plaintiff responded in opposition.

1

On January 6,

(ECF No. 204.) 1

Plaintiff responded initially on December 17, 2015 (ECF No. 197), and
filed a response to Defendants’ statement of undisputed material facts (ECF
No. 198). Plaintiff filed a contemporaneous motion for leave to exceed page
limitation because his response was 110 pages long. (ECF No. 196.)
Defendants responded in opposition to the motion for leave to exceed page
limitation on the same day. (ECF No. 199.) On December 18, 2015, Defendants
also filed a motion to strike Plaintiff’s response to the motion for summary
judgment and Plaintiff’s response to the statement of undisputed material
facts. (ECF No. 200.) Plaintiff responded in opposition to the motion to
strike on the same day. (ECF No. 202.) On December 28, 2015, the Court
granted in part and denied in part Plaintiff’s motion for leave to exceed
page limitation and permitted Plaintiff to refile a response limited to
thirty-five pages in length within ten days of the order. (See ECF No. 203.)
In the same order, the Court granted Defendants’ motion to strike Plaintiff’s
110-page response but denied Defendants’ motion to strike Plaintiff’s
response to Defendants’ statement of undisputed material facts. (See id. at
3 & n.1.)

Defendants filed a reply brief on January 19, 2016.

(ECF No.

207.)
For the reasons set forth below, Defendants’ Motion for
Summary Judgment is GRANTED IN PART and DENIED IN PART.
I.

PROCEDURAL BACKGROUND
The relevant procedural history up to and including March

30, 2016, is provided in the Court’s order denying Plaintiff’s
motion for partial summary judgment.

(ECF No. 216 at 1-3.)

On April 4, 2016, the Court granted Plaintiff’s motion for
hearing (ECF No. 210).

(ECF No. 217.)

A telephonic status

conference is set for Friday, May 20, 2016.

(ECF No. 225.)

On April 15, 2016, Plaintiff filed a motion for a temporary
restraining order.

(ECF No. 219.)

opposition on April 19, 2016.
denied on the same day.

Defendants responded in

(ECF No. 221.)

The motion was

(ECF No. 222.)

On May 6, 2016, Plaintiff filed a motion for a preliminary
injunction.

(ECF No. 227.)

The motion remains pending before

the Court.
II.

UNDISPUTED MATERIAL FACTS
The Court’s October 2, 2015, order granting in part and

denying in part Defendants’ motion to dismiss provides a summary
of the factual background of this case.

2

(See ECF No. 170 at

4-8.)

As a result of that order and several other orders, 2 the

claims that remain are: Plaintiff’s equal protection claim as to
the Crossroads Ford location; Plaintiff’s equal protection claim
as to Planned Unit Developments (“PUDs”); Plaintiff’s request
for a declaration that the Billboard Act is unconstitutional;
and Plaintiff’s claim for injunctive relief as to Crossroads
Ford.

(See Second Am. Compl., ECF No. 45; ECF No. 170; ECF No.

175; see also ECF No. 216 at 4.)

The following material facts

are undisputed for the purposes of the instant motion.
Plaintiff owns several tracts of real property in West
Tennessee, on which he has placed billboards.

(Statement of

Undisputed Facts (“SUF”) ¶ 2, ECF No. 166-1; Resp. to Undisputed
Facts (“Resp. to SUF”) ¶ 2, ECF No. 198.)
A.

Crossroads Ford

Plaintiff’s permit application for a billboard at the
Crossroads Ford property was denied in 2006 because the proposed
billboard was less than 1,000 feet from the billboard of a
competitor.

(State ex rel. Comm’r of Dep’t of Transp. v.

Thomas, 336 S.W.3d 588, 592 (Tenn. Ct. App. 2010); SUF ¶ 5;
Resp. to SUF ¶ 5.)

An administrative law judge denied

2
The relevant orders are the Court’s October 29, 2015, order denying
Plaintiff’s motion for temporary restraining order (ECF No. 175) and the
Court’s March 30, 2016, order denying Plaintiff’s motion for reconsideration
(ECF No. 215). The Court considered two of the remaining issues which were
raised in Plaintiff’s motion for partial summary judgment, but denied the
relief requested. (See ECF No. 216.)

3

Plaintiff’s appeal on or about November 27, 2006, 3 but Plaintiff
began construction on the billboard in early 2007.
S.W.3d at 592; SUF ¶¶ 6-7; Resp. to SUF ¶¶ 6-7.)

(Thomas, 336
Consequently,

the Tennessee Department of Transportation (“TDOT”) initiated an
enforcement action in March 2007.
SUF ¶ 8; Resp. to SUF ¶ 8.)

(Thomas, 336 S.W.3d at 593;

Besides Plaintiff’s billboard, the

Crossroads Ford property has only trees.

(Thomas Dep.

146:11-13, ECF No. 166-4; SUF ¶ 10; Resp. to SUF ¶ 10.)
Plaintiff asserts that he has displayed only non-commercial
messages on the billboard since May 2012.
SUF ¶ 9.)

(SUF ¶ 9; Resp. to

Plaintiff also asserts that four billboards 4 are

similarly situated to the Crossroads Ford billboard.

(Thomas

Dep. 105:6-12, ECF No. 166-4; SUF ¶ 14; Resp. to SUF ¶ 14.)
Three of the asserted billboards advertise businesses that are
on the premises.
B.

(SUF ¶ 15; Resp. to SUF ¶ 15.)

Planned Unit Developments (“PUDs”)

Plaintiff planned to build billboards on two PUD sites,
Steve Road and Kate Bond.
Resp. to SUF ¶ 17.)

(Thomas Dep. 86:10-13; SUF ¶ 17;

Plaintiff asserts that there are similarly

situated billboards on PUD sites for which permits were granted
3

While the Thomas opinion states that the administrative law judge
ruled on November 27, 2006, that Thomas was not entitled to a permit, 336
S.W.3d at 592, Defendants’ Statement of Undisputed Facts and Plaintiff’s
Response to the Statement of Undisputed Facts indicate that the judge ruled
on November 26, 2006 (SUF ¶ 6; Resp. to SUF ¶ 6).
4
These billboards are: one Southern Millworks billboard; two Jackson
billboards, and one Valero Refinery billboard. (Thomas Dep. 105:13-18; Bible
Aff. ¶ 2, ECF No. 166-2; SUF ¶ 14; Resp. to SUF ¶ 14.)

4

by the TDOT Commissioner, but that his permit was not granted.
(SUF ¶ 18; Resp. to SUF ¶ 18.)

TDOT Commissioner Johnson

granted permits 5 on a PUD site in October 1993.

(Bible Aff. ¶ 5

at PageID 2604, ECF No. 166-2; SUF ¶ 20; Resp. to SUF ¶ 20.)
Plaintiff’s Steve Road application was filed on October 13,
2006, and denied on November 17, 2006.

(Thomas v. Tenn. Dep’t

of Transp. (“Thomas v. TDOT”), No. M2012-01936-COA-R3-CV, 2013
WL 4068178, at *1-2 (Tenn. Ct. App. Aug. 12, 2013); SUF
¶¶ 23-24; Resp. to SUF ¶¶ 23-24.)

On August 12, 2013, the

Tennessee Court of Appeals found that the denial was proper.
(Thomas v. TDOT, 2013 WL 4068178, at *9; SUF ¶ 25; Resp. to SUF
¶ 25.)

The permits for the Kate Bond billboard were denied on

April 29, 2005.

(Bible Aff. ¶ 4, ECF No. 166-2; SUF ¶ 27; Resp.

to SUF ¶ 27.)
C.

Tennessee Billboard Act

The Tennessee Billboard Act (“Billboard Act”) is meant “to
protect the public investment in such highways, to promote the
safety and recreational value of public travel and to preserve
natural beauty” of the highways.

(Exs. B, C, Bible Aff., ECF

No. 166-2; SUF ¶ 33; Resp. to SUF ¶ 33.)

TDOT must enforce the

5
Plaintiff does not dispute that Defendant Shawn Bible testified to
this fact in her affidavit. (Resp. to SUF ¶ 20; see also Bible Aff. ¶ 5 at
PageID 2604, ECF No. 166-2.) While Plaintiff states that he “does not admit
the truthfulness of” this fact (Resp. to SUF ¶ 20), the Court has no reason
not to accept this fact as undisputed. See Fed. R. Civ. P. 56(c)(1); Fed. R.
Civ. P. 56(e)(2).

5

Billboard Act or risk losing over $80 million 6 annually in
federal funds.

(Prelim. Inj. Hr’g Tr. 16:10-17:17, 20:14-25,

ECF No. 150; SUF ¶¶ 34, 36; Resp. to SUF ¶¶ 34, 36.)

The

Federal Highway Administration is compelling Tennessee to
continue to enforce the Billboard Act despite the Supreme
Court’s decision in Reed v. Town of Gilbert, 135 S. Ct. 2218
(2015).
¶ 40.)

(Bible Aff. ¶ 2, ECF No. 127; SUF ¶ 40; Resp. to SUF
Looking at off-road objects such as billboards can

contribute to distracted driving.

(SUF ¶¶ 45-46; Resp. to SUF

¶¶ 45-46.)
III. LEGAL STANDARD
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Fed. R.

Civ. P. 56(a); accord Haddad v. Alexander, Zelmanski, Danner &
Fioritto, PLLC, 758 F.3d 777, 781 (6th Cir. 2014) (per curiam).
“A genuine dispute of material fact exists if ‘there is
sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.’”

Am. Copper & Brass, Inc. v.

Lake City Indus. Prods., Inc., 757 F.3d 540, 543-44 (6th Cir.

6
Plaintiff does not dispute that Paul Deggess of TDOT testified to this
fact at a preliminary injunction hearing on July 14, 2015 (Resp. to SUF
¶¶ 34, 36). Plaintiff states that he “cannot admit or deny [the]
truthfulness” of the statement that $80 million would be at risk. (Resp. to
SUF ¶ 36). The Court has no reason not to accept this fact as undisputed.
See Fed. R. Civ. P. 56(c)(1); Fed. R. Civ. P. 56(e)(2).

6

2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986)).
“The moving party bears the initial burden of demonstrating
the absence of any genuine issue of material fact.”

Mosholder

v. Barnhardt, 679 F.3d 443, 448 (6th Cir. 2012) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

“In considering a

motion for summary judgment, [the] court construes all
reasonable inferences in favor of the nonmoving party.”
Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
“Once the moving party satisfies its initial burden, the
burden shifts to the nonmoving party to set forth specific facts
showing a triable issue of material fact.”

Mosholder, 679 F.3d

at 448-49 (citing Matsushita, 475 U.S. at 587; Fed. R. Civ.
P. 56(e)).

“When the non-moving party fails to make a

sufficient showing of an essential element of his case on which
he bears the burden of proof, the moving parties are entitled to
judgment as a matter of law and summary judgment is proper.”
Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d
911, 914 (6th Cir. 2013) (quoting Chapman v. UAW Local 1005, 670
F.3d 677, 680 (6th Cir. 2012) (en banc)).
To show that a fact is, or is not, genuinely disputed,
both parties are required to either “cite[] to
particular parts of materials in the record” or
7

“show[] that the materials cited do not establish the
absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to
support the fact.”
Bruederle v. Louisville Metro Gov’t, 687 F.3d 771, 776 (6th Cir.
2012) (alterations in original) (quoting Fed. R. Civ. P.
56(c)(1)), cert. denied, 133 S. Ct. 866 (2013).
“The court need consider only the cited materials, but it
may consider other materials in the record.”

Fed. R. Civ.

P. 56(c)(3); see also Pharos Capital Partners, L.P. v. Deloitte
& Touche, 535 F. App’x 522, 523 (6th Cir. 2013) (per curiam)
(acknowledging that the district court has no duty to search
entire record to establish grounds for summary judgment).
IV.

ANALYSIS
A.

Timeliness of the Claims

Defendants assert that claims related to the Crossroads
Ford enforcement action and to the PUDs are time-barred because
Plaintiff failed to file this action within the relevant statute
of limitations.

(ECF No. 167 at 18-19.)

Defendants assert, and

Plaintiff does not dispute, that the statute of limitations is
one year pursuant to section 28-3-104(a)(1) of the Tennessee
Code.

(Id.; ECF No. 204 at 13-14.)

Since the Crossroads Ford

enforcement action was initiated in 2007; the Steve Road permits
were denied in 2006; and the Kate Bond permits were denied in
2005, Defendants argue that the instant suit, brought by

8

Plaintiff in December 2013, was filed after the one-year statute
of limitations had expired for each of the three claims.
No. 167 at 19.)

(ECF

Plaintiff in his response does not address the

timeliness of his Steve Road or Kate Bond PUD claims.
No. 204 at 13-14.)

(See ECF

Plaintiff argues, however, that the

Crossroads Ford enforcement action initiated in 2007 is not the
relevant event from which the statute of limitations begins to
run.

(Id. at 14.)

Plaintiff argues that his Crossroads Ford

enforcement action claim only arose in May 2015, when he
received a letter from TDOT stating that the Crossroads Ford
billboard structure must be removed by June 26, 2015.
ECF No. 204-2 at PageID 3841.)

(Id.; see

The Court finds that all three

of the above claims are time-barred and grants summary judgment
to Defendants.
First, there is no dispute as to the dates on which the
statute of limitations began to run with respect to the Steve
Road or Kate Bond PUD claims.

The permits for Steve Road and

Kate Bond were denied in 2006 and 2005, respectively, but the
instant suit was not filed until 2013.

Thus, the one-year

statute of limitations had already expired for both the Steve
Road and Kate Bond PUD claims when the suit was filed.
Defendants are entitled to summary judgment as to these claims.
Second, Plaintiff’s argument that his Crossroads Ford
action did not arise until May 2015 is specious given that he
9

included the Crossroads Ford enforcement action in his equal
protection claims in both the original complaint, filed in
December 2013, and the amended complaint, filed in October
2014.

(See ECF No. 1 at ¶ 62; ECF No. 45 ¶ 81.)

The Court

finds that the Crossroads Ford claim could have arisen in May
2012 at the latest, when Plaintiff began displaying
non-commercial messages on the billboard.
SUF ¶ 9.)

(SUF ¶ 9; Resp. to

Even if that were the case, Plaintiff’s filing of the

instant suit in December 2013 occurred more than one year after
May 2012.

Thus, Defendants have met their burden to demonstrate

the absence of a genuine issue of material fact, and Plaintiff
has failed to meet his burden of establishing a triable issue of
material fact.

See Mosholder, 679 F.3d at 448-49.

Accordingly, since there is no genuine dispute of material
fact that Plaintiff’s equal protection claims are time-barred,
Defendants’ motion for summary judgment is GRANTED as to the
Crossroads Ford enforcement action claim and the PUD claims.
B.

Equal Protection Claims

Even if Plaintiff’s equal protection claims were not
time-barred, there is no genuine dispute of material fact as to
Plaintiff’s equal protection challenges.

“The basis of any

equal protection claim is that the state has treated
similarly-situated individuals differently.”

Silver v. Franklin

Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992).
10

A court need not proceed to review of the alleged disparate
treatment if the claimant fails to demonstrate the existence of
similarly-situated individuals.

Braun v. Ann Arbor Charter

Twp., 519 F.3d 564, 575 (6th Cir. 2008).

In this case, as to

the Crossroads Ford claim, Plaintiff has not shown that there
were individuals similarly situated to him, that is, those
billboard owners who “display[] exclusively noncommercial
messages[ 7] that convey [the owners’] thoughts and ideas.”
Compl. ¶ 22, ECF No. 45.)

(Am.

Also, as to the PUD claims, Plaintiff

has not shown that similarly situated individuals were granted
permits on PUDs without the proper underlying zoning.
1.

Crossroads Ford

Plaintiff asserted initially that there were four different
billboards similarly situated to his Crossroads Ford sign, but
later conceded that three of the four billboards are exempt from
regulation because they advertise on-premise businesses while
Plaintiff’s does not.

(Thomas Dep. 105:6-12, ECF No. 166-4; SUF

¶¶ 14-15; Resp. to SUF ¶ 14-15.)

The fourth billboard, at a

Valero refinery location, initially displayed an off-premise
advertisement for Golden Corral.
7

(See Hr’g Tr. 27:10-13,

In his amended complaint, Plaintiff asserts that such messages are
“on-premise” and exempt from regulation. (See, e.g., Am. Compl. ¶ 65, ECF
No. 45.) In response to Defendants’ statement of undisputed facts, however,
Plaintiff states that he “displayed speech protected under the First
Amendment and not ‘on-premise’ speech.” (Resp. to SUF ¶ 9, ECF No. 198.)
Regardless, Plaintiff’s billboard at Crossroads Ford is distinguishable from
the four billboards he asserts are similarly situated for the reasons
articulated in this part.

11

28:13-20, ECF No. 204-2 at PageID 3831-32.)

The billboard was

changed to read “Valero Honors Our Veterans,” which is
considered an on-premise message because the billboard is
situated at a Valero location.

(See id. at 31:19-32:3, ECF No.

204-2 at PageID 3835-36; ECF No. 166-2 at PageID 2606; SUF ¶ 16;
Resp. to SUF ¶ 16.)
Plaintiff argues that the Valero message does not “ha[ve]
anything to do with the business on the premise.”
¶ 16, ECF No. 198.)

(Resp. to SUF

The Valero billboard, however, cannot be

considered similarly situated to Plaintiff’s Crossroads Ford
Although both include a noncommercial message, 8 the

billboard.

Valero billboard is on the premises of a Valero location whereas
the Crossroads Ford property consists only of the billboard and
trees.

(See SUF ¶ 10; Resp. to SUF ¶ 10.)
2.

PUDs

Plaintiff asserts, and Defendants do not dispute, that a
former TDOT commissioner granted permits for billboards on PUD
sites while Plaintiff’s permits for Steve Road and Kate Bond
were denied.

(SUF ¶¶ 18-19; Resp. to SUF ¶¶ 18-19.)

Plaintiff

argues that the individuals granted permits by the former
commissioner in 1993 are similarly situated to Plaintiff simply
because the permits were “similarly in PUD[]s.”
18-19.)

(ECF No. 204 at

Defendants argue that individuals granted permits by a

8

The Crossroads Ford billboard featured “words of encouragement and
support for the U.S. Olympic team.” (Resp. to SUF ¶ 9.)

12

different commissioner over a decade after Plaintiff’s permits
were denied cannot be said to be similarly situated to
Plaintiff.

(ECF No. 167 at 20-21.)

In addition, Defendants

assert that the permits granted in 1993 were over the objections
of the TDOT Highway Beautification Office.
Bible Aff., ECF No. 166-2).)

(Id. at 20 (citing

The Court finds that Plaintiff has

not presented evidence to establish an equal protection claim as
to the PUDs.
While there is similarity in that the permits issued in
1993 and Plaintiff’s denied permits were for PUD sites without
the proper underlying zoning, Plaintiff has failed to
demonstrate that those property owners who were granted permits
in 1993 were similarly situated.

See Silver, 966 F.2d at

1036-37 (“Although [the plaintiff] asserts that the [defendant]
has issued conditional zoning certificates to other . . .
developments, he has presented no evidence that these other
developments were similarly situated to his development.”).
Plaintiff does not provide evidence to show similarity between
the PUD site from 1993 and his PUD sites.

In addition, the

commissioner who granted the 1993 permits was not the same
commissioner who denied Plaintiff’s permits.

See Purze v. Vill.

of Winthrop Harbor, 286 F.3d 452, 455-56 (7th Cir. 2002) (citing
one reason the plaintiffs were not similarly situated to other
individuals as that the other individuals’ zoning requests had
13

been “granted by different and previous Boards”); cf. Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir. 2000) (finding
in the employment context that “when different decision-makers
are involved, two decisions are rarely similarly situated in all
relevant respects” (internal quotation marks omitted)).
Plaintiff also asserts that several other permits have been
granted for billboards on PUD sites.
SUF ¶¶ 19, 21.)

(SUF ¶¶ 19, 21; Resp. to

He cites permits 79-2706 and 79-2707 on the

Pearce Property; 79-2932 and 79-2949 on the Great American Home
Store Property; and 79-2388, 79-2389, 79-3009, and 79-3010 on
the Bellevue Baptist Property.

(Resp. to SUF ¶ 21.)

Plaintiff

also attaches a list of the asserted billboards and permits.
(ECF No. 204-1 at PageID 3638-41.)

Defendants assert that none

of the asserted permits relate to billboards on PUDs that would
be similarly situated to Plaintiff’s proposed PUD sites.
No. 207 at 5.)

(ECF

Defendants state that the Pearce Property

permits are for signs on land with a different zoning
designation; 9 that the Great American Home Property permits are
for signs “grandfathered in” after the Billboard Act was passed,
thereby sanctioning their nonconformance; and that the Bellevue

9

Defendants assert that the permits “are located on land that is zoned
commercial-highway.” (ECF No. 207 at 5 (citing Bible Aff. ¶ 2, ECF No.
207-1).) The Steve Road site was zoned only for “residential,”
“agricultural,” and “flood plain uses.” Thomas v. TDOT, 2013 WL 4068178, at
*9. Plaintiff argues that his Steve Road and Kate Bond sites are zoned “P.D.
Commercial.” (Resp. to SUF ¶ 28.) Such a zoning designation does not exist.
Thomas v. TDOT, 2013 WL 4068178, at *7.

14

Baptist Property signs are those for which the former
commissioner issued the permits in 1993.

(ECF No. 207 at 5

(citing Bible Aff. ¶ 2, ECF No. 207-1).)

Thus, the PUD permits

asserted by Plaintiff are not similar to the permits Plaintiff
sought for the proposed PUD sites, and Plaintiff has not
demonstrated that there are any similarly-situated individuals
whom the state treated differently.
Defendants have established the absence of a genuine issue
of material fact, but Plaintiff has not shown a triable issue of
material fact that there are similarly-situated individuals whom
TDOT has treated differently.

Accordingly, there is no genuine

dispute of material fact as to the non-existence of
similarly-situated individuals, and Defendants’ motion for
summary judgment is GRANTED as to the Crossroads Ford and PUD
equal protection claims.
C.

Constitutionality of Billboard Act

The Court has found that the Billboard Act is likely
content-based in light of Reed v. Town of Gilbert, 135 S. Ct. 2218
(2015).

(See ECF No. 163 at 6-12.)

Content-based speech

restrictions must be “narrowly tailored to serve compelling state
interests.”

Reed, 135 S. Ct. at 2226.

In the Court’s order

denying partial summary judgment to Plaintiff, the Court found
that there are disputed issues of material fact as to whether
the governmental interests asserted by Defendants are compelling
15

such that the Billboard Act could survive strict scrutiny.
No. 216 at 13-15.)

(ECF

The question of compelling interests is one

about which the finder of fact must make a determination.

(See

ECF No. 216 at 13 n.2 (citing Petit v. City of Chicago, 219 F.
Supp. 2d 917, 918-20 (N.D. Ill. 2002) (permitting jury’s
determination as to compelling interests and narrow
tailoring)).)

Thus, because there is a genuine dispute of

material fact as to whether the government interests achieved by
the Billboard Act are compelling, Defendants’ motion for summary
judgment is DENIED as to the constitutionality of the Billboard
Act.
D.

Injunctive Relief 10

On September 8, 2015, the Court granted Plaintiff’s motion
for a preliminary injunction as to the Crossroads Ford location.
(ECF No. 163.)

The four factors that Plaintiff now must satisfy

for a permanent injunction are:
(1) that [he] has suffered an irreparable injury; (2)
that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships between
the plaintiff and defendant[s], a remedy in equity is
warranted; and (4) that the public interest would not
be disserved by a permanent injunction.

10

Defendants’ memorandum in support of their motion for summary
judgment states that Plaintiff sought two injunctions but addresses only the
Crossroads Ford injunction because the other injunction sought by Plaintiff
was discussed in a separate motion. (ECF No. 167 at 26.) The other
injunction, which related to a Chancery Court action to recoup Defendants’
costs for removing Plaintiff’s billboards, was denied by the Court on October
29, 2015. (ECF No. 175.)

16

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
The Court finds that the determination of whether the four
factors weigh in Plaintiff’s favor depends largely on whether
the Billboard Act is constitutional.

For example, if the

Billboard Act is unconstitutional, removal of the Crossroads
Ford sign would be a violation of Plaintiff’s constitutional
rights, causing irreparable injury and disserving the public
interest.

Thus, the Court defers determination of the

injunction relief issue until the constitutionality of the
Billboard Act is resolved.
V.

CONCLUSION
Defendants’ Motion for Summary Judgment is GRANTED as to

the remaining equal protection claims and DENIED as to the
constitutionality of the Billboard Act.
IT IS SO ORDERED, this 16th day of May, 2016.

/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE

17